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Supreme Court of California v. Kinney

United States District Court, N.D. California, San Francisco Division

May 15, 2015

SUPREME COURT OF CALIFORNIA, Plaintiff,
v.
CHARLES KINNEY, Defendant.

ORDER GRANTING THE STATE BAR'S MOTION TO REMAND [Re: ECF No. 5]

LAUREL BEELER, Magistrate Judge.

INTRODUCTION

Defendant Charles Kinney, who is an attorney representing himself, removed an attorney disciplinary action brought against him by the California Supreme Court. (Notice of Removal, ECF No. 1.[1]) The State Bar of California, as the real party in interest, moves to remand the matter back to the California Supreme Court. (Motion, ECF No. 5.) The State Bar and Mr. Kinney both have consented to the undersigned's jurisdiction. (State Bar Consent, ECF No. 7; Kinney Consent, ECF No. 9.) Pursuant to Civil Local Rule 7-1(b), the court finds this matter suitable for determination without oral argument and vacates the May 28, 2015 hearing. The court grants the State Bar's motion and remands the matter back to the California Supreme Court because (1) removal was not proper and (2) this court lacks subject-matter jurisdiction over the action.

STATEMENT

According to Mr. Kinney's notice of removal, the documents attached to it, and the documents subject to judicial notice, the narrative is as follows. On October 11, 2012, the State Bar filed a Notice of Disciplinary Charges against Mr. Kinney and Kimberly Kempton. ( See State Bar's Request for Judicial Notice ("State Bar RJN"), Ex. A, ECF No. 5-2 at 1-49.[2]) On June 19, 2013, the State Bar Court's Hearing Department found Mr. Kinney culpable of multiple acts of misconduct and recommended that he be suspended from the practice of law for a period of three years. (State Bar RJN, Ex. B, ECF No. 5-2 at 50-84.) The Hearing Department's decision was reviewed by the State Bar Court's Review Department. ( See State Bar RJN, Ex. C, ECF No. 5-2 at 86-102.) On December 12, 2014, the Review Department determined that Mr. Kinney's acts of misconduct were sufficiently egregious to warrant a disbarment recommendation. (Id. ) As a consequence of the disbarment recommendation, Mr. Kinney was involuntarily enrolled as an inactive member of the State Bar. (Id. )

Thereafter, Mr. Kinney petitioned the California Supreme Court for review of the Review Department's decision and to stay the order involuntarily enrolling him as an inactive member of the State Bar. ( See State Bar RJN, Ex. D, ECF No. 5-2 at 103-04.) The record of the State Bar Court proceeding and its disbarment recommendation was transmitted to the California Supreme Court, and a disciplinary action named "Charles Kinney on Discipline" (California Supreme Court Case Number S224289) was opened. ( See id. ) Mr. Kinney also filed a "Supplement" and a "Further Supplement" to his petition. ( See id. ) On March 25, 2015, the California Supreme Court denied Mr. Kinney's request for a stay of his involuntary enrollment as an inactive member of the State Bar. (State Bar RJN, Ex. E., ECF No. 5-2 at 105-06.)

On April 3, 2015, Mr. Kinney removed the California Supreme Court disciplinary action to this court. (Notice of Removal, ECF No. 1.) On April 20, 2015, the State Bar, as the real party in interest, filed a motion to remand the action. (Motion, ECF No. 5.) Mr. Kinney filed an opposition, and the State Bar filed a reply. (Opposition, ECF No. 10; Reply, ECF No. 11.)

ANALYSIS[3]

I. MR. KINNEY'S CITATIONS TO 28 U.S.C. §§ 1331, 1343, AND 1446

In his notice of removal, Mr. Kinney asserts that the disciplinary action may be removed "under the provisions of Section 3 of the Civil Rights Act of 1866, and/or 28 U.S.C. [§§] 1331, 1343, 1443... and 1446." (Notice of Removal, ECF No. 1 at 2.) Of these statutes, two-section 3 of the Civil Rights Act of 1866 and 28 U.S.C. § 1443-allow for removal. 28 U.S.C. § 1446 sets forth the procedure for the removal of civil actions, but it does not provide authority for removal itself. Mr. Kinney also cites 28 U.S.C. § 1331, which provides district courts with federal-question jurisdiction, and 28 U.S.C. § 1343, which provides district courts with jurisdiction over civil actions "authorized by law to be commenced by any person" to redress Constitutional or federal civil rights violations. To the extent that Mr. Kinney asserts that those statutes provide the court with jurisdiction, the court discusses them infra in conjunction with the general removal statute, 28 U.S.C. § 1441.

II. REMOVAL IS IMPROPER UNDER 28 U.S.C. § 1443

Mr. Kinney asserts that this action is removable under the Civil Rights Act of 1866 and 28 U.S.C. § 1443.

As an initial matter, the court finds that Mr. Kinney's assertion of removability fails to the extent it is based on the Civil Rights Act of 1866. He quotes from the Civil Rights Act of 1866 in his opposition, but that statute has undergone several revisions. See State of Georgia v. Rachel, 384 U.S. 780, 782, 788-797, 802 (1966). The substantive and removal provisions of the Civil Rights Act of 1866 were carried forward into different sections of the Revised Statutes of 1874. Id. at 789 & n.12. Section 3 of the Civil Rights Act of 1866, which contained the removal provision that Mr. Kinney relies on, was moved into section 641 of the Revised ...


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